Published Appellate Court Opinions

         On leave granted in this divorce matter, plaintiff Gene Van Den Ende appeals from certain provisions of a July 19, 2024 Family Part order, which granted defendant Crofton P. Reynold's cross-motion to dismiss her equitable distribution claims, to limit discovery, and to extend comity to South Africa for adjudication of the parties' Antenuptial Agreement.  Plaintiff and the parties' minor child are domiciled in New Jersey.  Defendant is domiciled in South Africa.  Plaintiff also appeals from a December 20, 2024 order denying her motion for reconsideration.

         The court held there are disputed factual issues concerning the filing of defendant's South African action, seeking a declaratory judgment, without a claim for divorce, regarding the enforceability of the Antenuptial Agreement where it was registered.  Because there are questions of fact as to whether plaintiff is subject to personal jurisdiction in South Africa, the court vacated the order addressing equitable distribution and the order denying reconsideration and remanded for a plenary hearing.

     The Borough of Caldwell executed several contracts with defendant architect for professional services, then eventually sued the architect for breach of contract, unjust enrichment, and violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -277.  Architect moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted under Rule 4:6-2(e).  Among other things, architect argued that:  Caldwell improperly hired an unqualified expert to support the allegations in its breach of contract claim; Caldwell's unjust enrichment claim did not allege any benefit outside of the contract and should therefore fail; and that Caldwell's CFA claim failed because the "learned professional" exception to the CFA applies to architects.  The trial court denied the motion.  Architect successfully sought leave to appeal, challenging the Law Division's order denying the architect's motion to dismiss as to Caldwell's breach of contract, unjust enrichment, and CFA claims.

     On leave granted, the court concluded:  (1) Caldwell's breach of contract and unjust enrichment claims were sufficiently pled to survive the architect's Rule 4:6-2(e) motion; (2) architects are members of a "historically recognized 'learned' profession" exempt under the CFA; and (3) the "patent and sharp" conflict analysis articulated by the Supreme Court in Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255 (1997), is not required on this record.  The court affirmed the trial court's denial of the architect's motion to dismiss the breach of contract and unjust enrichment counts, but reversed the portion of the order denying the architect's motion to dismiss the CFA count. 

          In this legal malpractice action, the trial court denied plaintiff's eighth motion to extend discovery.  Because a trial date was previously fixed in the sixth order extending discovery, the trial court determined the exceptional circumstances standard set forth in Rule 4:24-1(c) applied.  It denied the motion because plaintiff failed to show exceptional circumstances.

         Defendants moved for summary judgment arguing plaintiff failed to serve an expert report in support of her claims of legal malpractice.  The trial court granted defendant's motion for summary judgment, concluding plaintiff's opposition to the motion was deficient, and her legal malpractice claims failed as a matter of law because she did not have an expert.

         The court affirmed.  It determined the trial court correctly applied the exceptional circumstances standard and did not misapply its discretion by denying the eighth motion to extend discovery.  In doing so, the court addressed the scope of its decision in Hollywood Café Diner, Inc. v. Jaffee, 473 N.J. Super. 210 (App. Div. 2022), to clarify that its limitation on the applicability of the exceptional circumstances standard set forth in Rule 4:24-1(c) applies only when an arbitration or trial date is set administratively by notice prior to the conclusion of the discovery period.  It held that once an arbitration or trial date is set by a judge in a discovery end date (DED) extension or case management order entered after expiration of the applicable initial period of discovery set forth in Rule 4:24-1(a), no extension of the discovery period may be permitted unless exceptional circumstances are shown.

After a jury trial, defendant R.A.M. appealed from his second-degree aggravated assault conviction for strangulation of a victim of domestic violence, N.J.S.A. 2C:12-1(b)(13), and resulting six-year prison sentence.  Defendant challenged the prosecutor's summation and the trial court's imposed sentence. 

Defendant raised a question of first impression regarding the trial court's application of aggravating factor fifteen, N.J.S.A. 2C:44-1(a)(15).  The court holds the trial court did not impermissibly double-count defendant's underlying domestic violence related offense in finding aggravating factor fifteen applied because, in addition to the trial court's finding that the jury convicted defendant of an offense involving a domestic violence victim, the trial court separately determined the State established defendant had previously committed an act of domestic violence.  

The court also concluded that defendant's arguments that the trial court improperly considered defendant's dismissed charges, that it provided insufficient reasons for the sentencing factors considered, and that the prosecutor's summation amounted to plain error lacked merit.   

Petitioners appeal from the final administrative decision of the Commissioner of the New Jersey Department of Education concluding that the School Funding Reform Act, N.J.S.A. 18A:7F-43 to -70, was constitutional as applied to the Lakewood Public School District. Petitioners, parents of children enrolled in the school district, filed an application with the Commissioner in 2014, alleging that Lakewood failed to provide public school students with a thorough and efficient education, as required by the New Jersey Constitution due to insufficient SFRA funding.

After years of litigation, the Commissioner issued a final administrative decision in 2021, finding that the public-school students of Lakewood were not deprived of their constitutional right to a thorough and efficient education.  Petitioners appealed, and the Appellate Division reversed in Alcantara v. Allen-Mcmillan, 475 N.J. Super. 58 (App. Div. 2023) (Alcantara I), concluding that the public-school students of Lakewood suffered from an ongoing deprivation of a thorough and efficient education.  The Appellate Division remanded the matter for the Commissioner to make additional findings to answer the question:  Is the SFRA unconstitutional as applied to the Lakewood Public School District? 

On April 1, 2024, after conducting additional fact-finding, the Commissioner issued a final administrative decision concluding that the students' constitutional deprivation found by the Appellate Division in Alcantara I was not due, in significant part, to the SFRA and its implementation.  Petitioners again appealed the agency's final decision.

On appeal, the Appellate Division, applying the well-settled agency deferential standard of review to its consideration of the Commissioner's final decision, concluded there was ample support in the record to conclude that the SFRA is not unconstitutional as it is applied to the Lakewood Public School District, and affirmed the final administrative decision.

     Appellants Raymond J. Lesniak and the Lesniak Institute for American Leadership appeal from the January 10, 2024 Law Division order granting respondents' motion to dismiss their complaint for declaratory and injunctive relief with prejudice pursuant to Rule 4:6-2(e).  Appellants challenge the constitutional authority and composition of the New Jersey Fish and Game Council, specifically as they are defined and limited by the powers granted to the Legislature under the New Jersey Constitution.  They seek to enjoin the Fish and Game Council from implementing the 2022 Comprehensive Black Bear (Ursus americanus) Management Policy, the amendments to the State Fish and Game Code, and the bear hunt. 

     The court concludes appellants' verified complaint on its face fails to state a viable constitutional claim of the separation of powers, allocation of governmental authority, and the non-delegation doctrine.  The validity of the governing law, and its application to the delegation of regulatory authority to the Fish and Game Council as set forth in N.J.S.A. 13:1B-24 to -32, has been thoroughly examined in Humane Soc'y of U.S. v. N.J. State Fish & Game Council, 70 N.J. 565 (1976) and U.S. Sportsmen's All. Found. v. N.J. Dep't of Env't Prot., 182 N.J. 461 (2005) and passed constitutional muster. 

     Appellants alternatively argue that summary judgment should have been granted because the questions of law presented rested upon undisputed material facts.  Appellants' argument is based on an untenable premise, as it is unsupported by any evidence that rebuts recognized legal principles.

     The court therefore affirms the dismissal of appellants' verified complaint and the denial of appellants' cross-motion for summary judgment.

This appeal raises a novel issue regarding whether an officer's observation of defendant's entry of his passcode into his cell phone violates defendant's right to privacy and Fifth Amendment right against self-incrimination.  The court holds that defendant had no reasonable expectation of privacy given the facts of this case.  The court further holds there was no violation of defendant's Fifth Amendment right against self-incrimination where defendant voluntarily requested his cell phone, was not compelled to provide the passcode and voluntarily entered the passcode in front of the officer.  Moreover, the State would have inevitably discovered the passcode for defendant's cell phone by the issuance of an Andrews order.  State v. Andrews, 243 N.J. 447 (2020).   

In this matter of first impression, the court addresses the elements of second-degree purchasing firearm parts to manufacture a firearm without a serial number, N.J.S.A. 2C:39-9(k) (Paragraph k), and the application of the territorial jurisdiction statute, N.J.S.A. 2C:1-3.  In doing so, the court rejects defendant's argument that Paragraph k is comprised of one element.  Instead, the court concludes Paragraph k requires the State prove defendant: (1) purchased a ghost gun kit; (2) acted with purpose to manufacture or assemble a firearm; and (3) was not registered or licensed to manufacture or assemble a firearm in this state.

Although the evidence presented to the grand jury revealed the purchase of ghost gun kits occurred in Pennsylvania, and was lawful in that jurisdiction, the State presented sufficient evidence from which the jury could infer defendant purchased the kits with the purpose of manufacturing firearms in New Jersey, satisfying the culpability element under N.J.S.A. 2C:1-14(h)(3)(b), and territorial jurisdiction under N.J.S.A. 2C:1-3(a).

The court also rejected the State's argument that defendant waived his right to appeal from the denial of his motion to dismiss the indictment when he entered his guilty plea.  Although the motion was not specifically referenced in the plea form, defendant did not indicate "Yes" or "No" in response to Question 4(e), "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions except the following"? Nor did defendant directly answer the court's inquiry, "Do you understand by pleading guilty you are waiving your right to appeal the denial of any and all pretrial motions you or your attorney filed?"  Further, the State did not object when, during the plea hearing, defense counsel informed the court the "motion that was heard on the legality of the statute . . . can be appealed." 

The issues in this appeal are whether defendant's conviction for a fifth offense of driving while intoxicated (DWI) should be reversed on the ground that trial counsel rendered ineffective assistance by refusing to present a psychiatric defense and whether defendant was entitled to a jury trial given the 180-day sentence imposed.  The court affirms the tenet that DWI is a strict-liability offense for which mental-state defenses are unavailable and that defendant is not entitled to a jury trial where the period of incarceration does not exceed six months. 

Here, defendant was convicted following a municipal court bench trial at which he admitted to consuming alcohol, exhibited indicia of intoxication, and failed field sobriety tests.  Although defendant attributed his conduct to persecutory paranoia and amnesia unrelated to alcohol use, his trial counsel declined to pursue a psychiatric defense.  The court holds that counsel's decision was reasonable and compelled by law, as mental-state defenses such as insanity are not viable in DWI prosecutions.  In so holding, the court adopts as precedent the case of State v. Inglis, 304 N.J. Super. 207 (Law Div. 1997).

Counsel's refusal to advance a legally untenable defense did not fall below professional standards.  Nor did the sentence of 180 days in county jail entitle defendant to a jury trial.  The court reaffirms that a single petty offense subject to no more than six months' incarceration does not meet the threshold for jury-trial protections, even when accompanied by significant collateral penalties such as years-long license suspension and installation of an ignition interlock device.  The conviction and sentence are affirmed.

In this appeal, the court addresses the interplay between the Recovery Court expungement statute, N.J.S.A. 2C:35-14(m), and the law that governs expungements generally, N.J.S.A. 2C:52-1 to -32.1, as they relate to expungement of juvenile adjudications sought following completion of Recovery Court. 

The State appeals from a trial court order expunging petitioner's entire record including his juvenile delinquency adjudications after he successfully completed a Recovery Court special probation sentence. The State, joined by the New Jersey Attorney General as amicus, argues juvenile delinquency adjudications of non-expungable offenses if committed by an adult are not eligible for expungement despite successful completion of Recovery Court.  They warn a contrary interpretation defies legislative intent. 

In response, P.L., supported by amicus, the Association of Criminal Defense Lawyers of New Jersey, asserts the plain language of N.J.S.A. 2C:35-14(m) allows expungement of juvenile adjudications because adjudications are not convictions specifically excluded from post-Recovery Court relief. 

Relying on the plain language of both statutes, the court concludes the Legislature did not incorporate certain restrictions from the general expungement statute into the Recovery Court statute addressing expungement of adult criminal and juvenile adjudication histories, N.J.S.A. 2C:35-14(m). As a result, Recovery Court graduates may expunge all eligible offenses under this statute, including juvenile adjudications otherwise non-expungable if sought under the general expungement law.

The court considers whether, under the standard set forth in State v. Daniels, 182 N.J. 80 (2004), a prosecutor in summation impermissibly accused defendant of tailoring his testimony based on what he had witnessed while attending his trial.  The court also considers whether the jury's acquittal of defendant on the sexual-assault, robbery, and aggravated-assault charges required vacation of the conviction on the charge of possession of a weapon for an unlawful purpose.

In summation, the prosecutor attacked defendant's credibility by stating defendant in his testimony had told "a story of having consent" after he "sat through this entire trial, hearing the testimony of every witness, after he heard all of the evidence against him, after having time to construct a new narrative."  The court holds the prosecutor could have challenged defendant's credibility using evidence in the record but instead impermissibly attacked his credibility based on his exercise of his fundamental rights to attend his trial and confront witnesses presented against him.  Pursuant to Daniels, the court vacates the convictions and remands for a new trial. 

Because the unlawful-purpose conviction was supported by sufficient evidence in the record, the court, following State v. Banko, 182 N.J. 44 (2004), rejects defendant's argument that the unlawful-purpose conviction must be vacated due to the acquittals of the other charges. 

In the unpublished portion of the opinion, the court addresses defendant's argument regarding his sentence.

     In this appeal, the court was asked to consider whether plaintiff, a municipal court administrator, is an employee of the Administrative Office of the Courts (AOC), thereby allowing her to assert a claim against the AOC under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.  Following the court's review of various statutes and court rules, it concluded that if the Legislature had intended municipal court administrators to be considered employees of the AOC, it could have expressly done so.  Instead, the Legislature enacted N.J.S.A. 2B:12-10(a), specifically establishing that municipalities "shall provide for an administrator" of municipal courts and pay "their compensation."  Moreover, N.J.S.A. 2B:12-1(a) provides "[e]very municipality shall establish a municipal court," not the AOC.  Although the AOC provides certain oversight and supervision of municipal courts, that does not equate with the AOC establishing an employer-employee relationship with plaintiff.

The State appealed trial court orders terminating Megan's Law, N.J.S.A. 2C:7-1 to -23, and Community Supervision for Life (CSL), N.J.S.A. 2C:43-6.4, obligations applicable to S.O. and G.N. (collectively, Registrants).  The court vacated the trial court orders and remanded both matters for further proceedings.

These appeals raised the novel issue of whether the "public safety prongs" in the termination provisions of Megan's law, N.J.S.A. 2C:7-2(f), and CSL, N.J.S.A. 2C:43-6.4(c), require trial courts to consider all subsequent non-sexual and sexual offenses when determining whether a registrant poses a threat to the safety of others.  The court concluded the public safety prongs contain ambiguous language, since they are susceptible to more than one interpretation.  Based on this ambiguity, the court applied principles of statutory construction, which required an examination of extrinsic evidence.   In reaching a decision, the court considered the legislative intent, legislative history and prior decisional law and interpreted the public safety prongs to require a trial court to determine whether a registrant established they were not likely to pose a threat to the safety of others, sufficient to warrant termination of their Megan's Law and CSL obligations, without confining its analysis to the threat of sexual re-offense.  

The court concluded, when evaluating whether the public safety prongs have been satisfied, trial courts shall engage in a holistic assessment of the individual registrant, considering the factual predicates for subsequent non-sexual and sexual offenses, a registrant's tier classification, Registrant Risk Assessment Scale (RRAS) score, any applications to modify their tier classification, expert psychological evaluations, evidence of therapeutic programs and counseling attended, and any other relevant proofs.   

In this slip and fall case, plaintiff attempts to expand the principles of sidewalk liability for commercial properties to a residential property that was unoccupied and undergoing renovations.  This court upholds the motion judge's rejection of plaintiff's invitation to adopt such expanded principles of liability. 

As an alternative argument, plaintiff contends the common law protection for residential property owners was nullified here because the defendant homeowners allegedly increased the sidewalk's slippery condition by negligently clearing snow from it. The court rejects this contention as well. 

Even viewing the record in a light most favorable to plaintiff, the motion judge properly deemed the evidence insufficient to present a genuine issue of material fact as to whether the homeowners had worsened the sidewalk's actual condition before her slip and fall.  The undisputed record establishes that the photographs plaintiff crucially relies upon to prove the sidewalk's supposedly worsened condition at the time of her fall were taken much later, after an intervening winter snowstorm—according to plaintiff's weather expert—had deposited as much as another 3.5 inches of snow in the area.  The weather data thus undermined plaintiff's contentions about the nature of the sidewalk's condition at the time of the accident, rendering her theory of liability untenable.

The court therefore affirms summary judgment and the dismissal of plaintiff's complaint. 

         In this appeal, the court reversed the trial court's decision permitting three write-in votes to be counted in the February 15, 2025 Toms River Board of Fire Commissioners, District No. 1 election. Petitioner Michael Hopson was an unsuccessful candidate for a position as a fire commissioner.  The trial court's decision changed the election results from a tie between Hopson and defendant Anthony Cirz to Cirz winning by one vote.  The court held the trial court misapplied N.J.S.A. 19:49-5, because the plain language of the statute prohibits the counting of a write-in vote for any person who is a candidate listed on the ballot.

         The court affirmed the trial court's decision not to count mail-in ballots that were deficient and incapable of being cured. Thus, the court remanded the matter for entry of an order for a run-off election between Hopson and Cirz for the one open seat.

     In this matter of apparent first impression, the court was asked to determine whether a future statutory lien pursuant to N.J.S.A. 30:4D-7.2 ("Medicaid Lien Statute") has priority over an accrued Division of Developmental Disabilities ("DDD") lien pursuant to N.J.S.A. 30:4-80.1 ("DDD Lien Statute").  The effect of that priority would be to bar appellant, DDD, from recovering on its lien against the inherited property of G.W. ("Gabrielle"), an adjudicated incapacitated person.    

     The court concluded the Medicaid Lien Statute and the DDD Lien Statute are not inconsistent with one another.  The Medicaid Lien Statute is clear that although Medicaid liens are "preferred claim[s] against the recipient's estate" and "have a priority equivalent to" N.J.S.A. 3B:22-2(d), N.J.S.A. 30:4D-7.2(d)(1) (emphasis added), they cannot come into being until the recipient of the funds has passed away, as "[a] lien may be filed against and recovery sought from the estate of a deceased recipient." N.J.S.A. 30:4D-7.2(a)(1) (emphasis added).  By its plain language, a Medicaid lien may attach only to the estate of a decedent, not the property of a living person.  When both liens exist at the same time, an existing DDD lien cannot take priority over an existing Medicaid lien.  However, in a situation such as this one, where no Medicaid lien exists because the recipient is still alive, DDD is entitled to recover on its lien, the only statutorily recognized lien in existence.  

     Because the plain language of the Medicaid Lien Statute and the DDD Lien Statute demonstrate DDD is entitled to recover its lien now and the DDD lien is not subordinate to a non-existing Medicaid lien, the court vacated the trial court's order finding the future Medicaid lien had priority over the existing DDD lien and remanded for an order consistent with its opinion.  However, the court affirmed the trial court's appointment of the Arc of Bergen and Passaic Counties ("Arc") as the guardian of Gabrielle's property and ordered Arc and DDD to engage in the compromise process pursuant to N.J.S.A. 30:4-80.6(c) regarding DDD's lien.  

     The court considers if judicial estoppel prevents a party from benefiting by making representations in state court that are inconsistent with those previously made to obtain a modification of an automatic stay imposed by a federal court in a bankruptcy case.

     While this automobile-accident case was pending in the Law Division, defendant filed a petition for bankruptcy in the federal bankruptcy court.  Plaintiff moved for a modification of an automatic stay issued by the bankruptcy court.  He represented to the court he was pursuing a judgment only in the amount of defendant's insurance coverage.  Plaintiff made the same representation in the Law Division in opposition to defendant's motion for a stay.  Based on plaintiff's representations, the Law Division judge denied defendant's stay motion and the bankruptcy court granted plaintiff's motion and modified its automatic stay, expressly to permit plaintiff to pursue a judgment limited to the amount of insurance coverage.  The Law Division case proceeded to trial; the jury awarded plaintiff a verdict far in excess of the amount of the insurance coverage. Plaintiff requested and obtained a judgment in the amount of the verdict plus relief granted pursuant to Rule 4:58-2(a).  The Law Division judge denied defendant's multiple motions to mold the verdict to the insurance-coverage amount, or in the alternative for a new trial or remittitur.

     Based on the equitable doctrine of judicial estoppel and applicable bankruptcy law, the court reversed and remanded for entry of an order molding the verdict to the amount of the insurance coverage.

     The court takes this opportunity to clarify the legal principles that govern motions for a new trial based on evidence not previously available to the defense.  Such motions, the court explains, can arise in two distinct circumstances:  (1) where the prosecutor was in possession of the "new" evidence but failed to disclose it to the defense—a discovery violation—and (2) where the defense discovers the new evidence through its own efforts.  In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court addressed the first situation.  In State v. Carter, 91 N.J. 86 (1982), the New Jersey Supreme Court considered both situations and devised what has been applied as a general test for resolving newly discovered evidence motions.   

     Defendant contends the prosecutor committed a discovery violation by not disclosing that its key trial witness had accepted a plea agreement tendered by the prosecutor in an unrelated matter eight years before defendant's murder trial. The court explains that the separate multi-prong tests set forth in Brady and Carter overlap but are not identical, which can lead to confusion.  The court considers whether the trial judge ultimately reached the correct conclusion in denying defendant's motion for a new trial notwithstanding that the judge did not cite to the governing precedent, Brady.

     The court emphasizes that the Carter and Brady tests share a common element: whether the jury's verdict would have been different had the defense been aware of the new evidence before trial. The question of "materiality" under both Carter and Brady is essentially a form of harmless error analysis.  Further, the court explains, while the two tests start from a different factual predicate, they converge on the fact-sensitive question of whether the trial outcome would have been different if the defense had been aware of the new evidence before trial.  The court further holds there is no practical difference between the materiality/harmless error elements set forth in the Brady and Carter formulations.  Thus, the court reasons, the motion judge's findings under Carter allow it to evaluate the materiality element of the Brady test, which requires reversal of a conviction only where there is a reasonable probability that had the evidence suppressed by the prosecutor been timely disclosed to the defense, the trial result would have been different. The court concludes that in this application, the newly discovered information would not have led to a different trial result. 

     The court also addresses defendant's contention the motion judge abused discretion and violated defendant's due process and compulsory process rights by refusing to enforce a subpoena to the Crime Stoppers program concerning possible reward payments to the State's witness.  The court concludes the motion judge did not provide adequate reasons explaining his decision.  The court thus remands for the motion judge to make additional findings of fact and conclusions of law.

     Defendant was charged with the illegal possession of a firearm and other offenses.  He appeals the denial of his motion to suppress a gun that police found after opening his companion's backpack without a search warrant. 

     Two police officers encountered the companion on the street after she and defendant got out of a parked car that had been described in a Be-On-the-Lookout (BOLO) report of a recent shooting.  After defendant fled the scene, the police handcuffed the companion and put her in the back seat of a police car.  The police then secured her belongings, including her backpack, in the front seat of the squad car.  She told the police she thought defendant had put a weapon in her backpack at an earlier time.  The police immediately opened the backpack without seeking a warrant. 

     The prosecution solely invoked the automobile and the exigent circumstances exceptions to the warrant requirement and did not rely on consent-to-search nor other exceptions. 

     In reversing the suppression denial, the court holds: (1) defendant had standing to challenge the backpack search; (2) the automobile exception to the constitutional warrant requirement does not apply because the backpack was not the fruit of the automobile search; and (3) the State failed to demonstrate exigent circumstances to justify the immediate necessity to open the backpack, which was secured in a police car and not accessible to the either the handcuffed companion or defendant. 

Defendant K.H. appeals from his jury trial convictions for aggravated sexual assault and burglary.  He claims DNA evidence police collected from him should have been suppressed because his consent to the buccal swab test was coerced.  He argues inter alia that it was unlawful for detectives to ask for consent after he invoked his Miranda rights, citing the court's recent decision in State v. Amang, __ N.J. Super. __ (App. Div. 2025). 

The present case probes the underlying rationale and boundaries of the bright line rule established in Amang.  In that case, the court held that under the New Jersey Constitution, police may not ask a person in custody to grant consent to a search if they had previously asserted the right to confer with an attorney during the administration of Miranda warnings.  In adopting that bright line rule, the court stressed the unique ability of attorneys to protect the Fifth Amendment rights of a client undergoing custodial interrogation. 

The court in the present appeal makes clear the categorical rule announced in Amang is triggered only by an arrestee's assertion of the right to confer with counsel.  It is not triggered by a defendant's assertion of the right to remain silent. 

Although it is not disputed that defendant in this case invoked his Miranda rights, the motion court did not make a specific finding on whether defendant requested to confer with an attorney, as he claims.  The court concludes that a remand for further factfinding is unnecessary in this case because in any event, the motion court correctly found that defendant's DNA would ultimately have been obtained under the inevitable discovery doctrine.  The court notes, however, the Miranda waiver form used in this case, like the one used in Amang, documents whether the arrestee invoked Miranda rights, but does not memorialize whether they asked to confer with counsel, asserted the right to remain silent, or asserted both rights guaranteed under Miranda. 

That distinction is important not only with respect to applying the Amang rule but also to ensure compliance with Fifth Amendment case law that precludes police from reinitiating custodial interrogation after the arrestee has asserted the right to counsel.  The court recommends that the Attorney General and county prosecutors review existing Miranda waiver forms to consider whether they should be revised to facilitate documenting whether an arrestee asserted the right to confer with counsel.